KEEPING YOUR TEAM IN THE GAME Fourth Annual Employment Law Conference Sponsored by: KRAMER RAYSON LLP Thursday, September 20, 2007 Club LeConte 800 South Gay Street, 27th Floor Knoxville, TN 37929 Time Topic Page 7:30 — 8:15 REGISTRATION AND CONTINENTAL BREAKFAST 8:15 — 8:30 WELCOME AND OPENING REMARKS - Edward G. Phillips 8:30 — 9:15 DEVELOPMENTS IN EMPLOYMENT LAW 1 Annual update of Supreme Court and significant appellate, federal and Tennessee cases and their application for employment practices and litigation in key areas, including discrimination based on age, race, gender, equal pay, harassment, disability, the FMLA and many others. Edward G. Phillips 9:15 — 10:00 HOW TO DEAL WITH A DEPARTMENT OF LABOR WAGE HOUR AUDIT 46 What would you do if your company received a letter from the United States Department of Labor (“DOL”) stating that an investigator would be at the door in the next few days to talk to the company’s employees and examine its wage and hour records? Worse, what if an investigator showed up unannounced and demanded to speak with employees and rifle throughout the company’s records? This session addresses the DOL’s audit process and suggests ways to prepare your company when faced with an investigation. Robert L. Bowman, Bill Rucinski 10:00 — 10:15 Refreshment Break 10:15 — 11:00 MANAGING THE EMPLOYEE WHO IS ABSENT 58 Injured and ill employees who miss work for long periods of time or intermittently raise multiple complex issues. This session addresses practical issues such as when an employer is on “notice” of an FMLA event, how to analyze leave rights under the FMLA and the ADA, how to deal with intermittent leave, requesting additional medical information, returning employees to work and many more. Edward G. Phillips 11:00 — 11:45 SETTLEMENT OF EMPLOYMENT DISPUTES 85 Enforcement issues in waivers/releases of employment claims, compliance with the OWBPA, and strategies for successfully obtaining settlement agreements. Also addressed: The validity of non-competition, non-solicitation, and confidentiality clauses as well as tax issues arising from settlement payments. Betsy J. Beck 11:45 — 1:00 Luncheon featuring speaker Roy F. Kramer 1:00 — 1:15 Break 1:15 — 2:00 REQUIRED ELECTRONIC RECORDKEEPING AND DISCOVERY ISSUES UNDER NEWLY-AMENDED FEDERAL RULES 104 Recent amendments to the Federal Rules of Civil Procedure have crystallized employers’ obligations to preserve and produce relevant electronically stored information. Multimillion-dollar verdicts have turned on the presence or absence of even routine employee documentation. This session will explain how to enhance your recordkeeping and management practices so that you comply with the law and obtain possible advantages in employment litigation. Charles E. Young Jr. 2:00 — 2:45 BREAKOUT SESSIONS: APPLICATION OF NLRB TO NON UNION AND UNION EMPLOYERS 127 An update on recent legislative and case law developments affecting non-union and union employers alike, including the current status of the “Employee Free Choice Act” and corporate smear campaigns. Steven E. Kramer SUCCESSFULLY DEFENDING WORKERS’ COMPENSATION CLAIMS 136 Exposure for workers’ compensations claims may be one of the largest expenses employers face in the future. This session discusses practical tips to help employers avoid certain claims and minimize the impact of others. Beecher A. Bartlett 2:45 — 3:00 Refreshment Break 3:00 — 3:45 BREAKOUT SESSIONS: IMMIGRATION UPDATE 157 Hot topics in employment immigration matters, including the latest legislative developments. Susan Schultz Davis WHAT HR MANAGERS NEED TO KNOW TO AVOID ERISA PITFALLS 163 As the “baby-boom generation” ages, the number and value of ERISA claims HR managers will be called upon to address will increase dramatically. While HR managers are not generally tasked with administering ERISA plans, HR personnel have inadvertently created liability for employers. Learn when silence is golden and deadly. John C. Burgin Jr. TRADE SECRET CLAIMS AND COVENANTS NOT TO 3:45 — 4:30 COMPETE 187 Carefully defining your trade secret(s), how HR departments can help position an effective case, what to do when your employee has breached trade secret non-competition responsibilities, minimizing risk of hiring talent who will be accused of stealing trade secrets, drafting effective and enforceable agreements. John E. Winters 4:30 Closing and Grand Prize Drawing. For information about this work, please contact the business manager at the address set forth below. Permission is hereby granted to reproduce and distribute copies of this work for nonprofit educational purposes or to providing individual copies to managers, supervisors and human resources personnel, provided that copies are distributed at or below cost, and that the author, source, and copyright notice are included on each copy. This permission is in addition to rights of reproduction granted under Sections 107, 108, and other provisions of the U.S. Copyright Act. Before making any distribution of this work, please contact the business manager to ascertain whether you have the current version. The information in this presentation is intended to provide general guidance on the topics set forth herein. It should not be considered legal advice. If you have a specific legal issue related to these topics, please consult with counsel. Contact information: http://www.kramer-rayson.com/contacts.htm Copyright 2007, Kramer Rayson LLP. DEVELOPMENTS IN EMPLOYMENT LAW Fourth Annual Employment Law Conference Sponsored by KRAMER RAYSON LLP Edward G. Phillips, Esq. KRAMER RAYSON LLP 800 South Gay Street First Tennessee Plaza, Suite 2500 Knoxville, Tennessee 37929-2500 Telephone: (865)525-5134 Fax: (865) 522-5723 E-mail: [email protected] Web: www.kramer-rayson.com 1 EMPLOYMENT LAW UPDATE I. 2006-2007 SUPREME COURT DECISIONS In 5-4 decision, Supreme Court limits the lifespan of Title VII-based pay discrimination claims. Tennessee employers, however, must be prepared to defend against claims reaching back decades under Tennessee Human Rights Act. Ledbetter v. Goodyear Tire and Rubber Co., Inc., 127 S. Ct. 2162; 167 L. Ed. 2d 982 (May 29, 2007). A divided U.S. Supreme Court decided that the pay discrimination claims of Lilly Ledbetter were time barred. Ledbetter brought suit in part under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-17(as amended), alleging gender discrimination in connection with her pay at Goodyear. Though she initially asserted an Equal Pay Act claim, a Magistrate recommended its dismissal and Ledbetter pursued only her Title VII pay discrimination claim. At trial, Ledbetter prevailed, and a jury awarded her $225,000 in back pay plus $3 million in punitive damages--finding that Goodyear discriminated against her in her pay throughout her entire 19-year career. Goodyear appealed, and the Eleventh Circuit granted judgment as a matter of law in its favor, concluding that, under Title VII, pay claims like Ledbetter’s are properly analyzed as “discrete acts of discrimination” rather than “continuing violations.” In the Eleventh Circuit’s view, Ledbetter could recover only to the extent she proved intentional discrimination with regard to pay decisions made within the appropriate limitations period (which was 180 days here, since Alabama is a non-deferral state). While the record included evidence that prior decisions had been motivated by discriminatory animus, the Eleventh Circuit found that Ledbetter failed to prove that the pay decision within the 180 day period was discriminatory. In the Supreme Court, Ledbetter argued that the Court’s decisions in Bazemore v. Friday, 478 U.S. 385 (1986) and National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), allowed her to sue for the entire 19 year period, arguing that pay discrimination claims were like hostile work environment claims (which by their very nature, continue over time). In Morgan the Court held that discrete acts of discrimination are barred if not timely filed. Bazemore held that each and every pay check based upon an uncorrected discriminatory practice is, in fact, a new discriminatory act. The Supreme Court held that each pay setting act (such as an annual raise) is a discrete act and the continuing violation theory does not apply. 2 Ledbetter asserted a disparate treatment claim, a central element of which is the intent to discriminate. However, Ledbetter alleged that the decisions made during the filing period “carried forward” the unlawful effects of earlier decisions. That argument is almost identical to the one advanced in United Airlines v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), and which was rejected. The majority rejected Ledbetter’s reading of Bazemore on the ground that the disparate pay scales the employer established and allowed to continue (after Title VII was applied to the states) was different from discrete decisions setting an individual’s salary for the coming year. Justice Ginsburg, in oral and written dissent, argued that the majority’s reliance on stare decisis and its discussion of legislative intent ignored the workplace reality that pay disparities are not written across the foreheads of affected employees. It is important to remember four things with regard to the impact of Ledbetter in Tennessee. First, the case was pursued under Title VII, not the Equal Pay Act, which requires no administrative charge filing, no discriminatory intent, and which incorporates a longer statute of limitations (two to three years). The Court even said the result would have been different had Ledbetter asserted an EPA claim. Second, Tennessee employers must deal with the reality that the Tennessee Supreme Court adopted the view in Booker v. Boeing, 188 S.W.3d 639 (Tenn. 2006), that the one-year limitations period for claims alleging discriminatory pay under the THRA begins when the discriminatory practice ceases - which that Court took to be when the plaintiff’s pay was brought in “parity” with her “peers.” Translated simply, Tennessee employers have to defend against discrepancies which might have roots (legitimate or not) stretching back as long as the affected employee’s tenure.